Lakeilia Johnson v. New Wave, LLC

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 16, 2015 Session
LAKEILIA JOHNSON V. NEW WAVE, LLC ET AL.
Appeal from the Chancery Court for Davidson County
No. 092295-III Ellen H. Lyle, Chancellor
No. M2014-02447-COA-R3-CV – Filed December 30, 2015
Homeowner filed suit against Defendants alleging intentional misrepresentation as to
contractor licensure, construction skills, and code compliance, breach of implied duty of
good faith and fair dealing, and violation of Tenn. Code Ann. § 62-6-136 for
misrepresentation of licensure in connection with a $27,500 contractor agreement for
home improvements. The trial court concluded that Defendants committed intentional
misrepresentation, breached the duty of good faith and fair dealing, and violated Tenn.
Code Ann. § 62-6-136. The trial court awarded Homeowner $18,100 in compensatory
damages, $36,200 in punitive damages, and prejudgment interest at the rate of 5% per
annum from the date the lawsuit was filed. Due to the lack of a transcript or a proper
statement of the evidence, we must affirm. We also find this appeal is devoid of merit and
so lacking in justiciable issues that it constitutes a frivolous appeal within the meaning of
Tenn. Code Ann. § 27-1-122. Accordingly, on remand the trial court shall award just
damages for the expenses Homeowner incurred as a result of this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Keith Sanders, Brentwood, Tennessee, Pro se.
David J. Tarpley, Zachary D. Oswald, and Claire B. Abely, Nashville, Tennessee, for the
appellee, Lakeilia Johnson.
OPINION
Although we do not have a verbatim transcript of the evidence or a statement of
the evidence, we learn the following from the pleadings in the record, the trial court’s
orders, and the briefs. Lakeilia Johnson (“Homeowner”) met Keith Sanders after he was
referred to her for the limited purpose of completing gutter repair on her home located in
Nashville, Tennessee. At the time Homeowner met Mr. Sanders, her home was in
significant disrepair. Mr. Sanders informed Homeowner that he could perform other
repair work and renovations on the home. Although Mr. Sanders was not a licensed
contractor and knew he could not obtain the necessary construction permits, he
represented to Homeowner that he was a licensed contractor and that the necessary
permits would be obtained. Homeowner relied on Mr. Sanders’ representations and
entered into a contract for various repairs to the home.
Mr. Sanders began work in August 2007. By October 5, 2007, Homeowner had
paid Mr. Sanders $18,100, which he deposited into the business bank account for New
Wave, LLC d/b/a Abest (“New Wave”).1 Following a dispute regarding the application of
Homeowner’s payments and the completion of the contract, Mr. Sanders terminated work
at the home on October 5, 2007, claiming that Homeowner failed to pay the full amount
required as of that date. At the time Mr. Sanders terminated work at the home, the
following conditions existed: electrical wires were left pulled out from the walls for dry-
walling; dry-walling was incomplete; the kitchen sink was not hooked up and there were
no kitchen counters; toilets were not reinstalled; an air conditioner unit was removed
from a window and the exterior was not secured from the elements; a sink was removed
from the upper bath and not reconnected; holes and cuts for the HVAC were left open;
kitchen cabinets were insecure and ill-fitting; stair railings were removed; and there were
no operable bathrooms.
Homeowner filed suit against several defendants including Mr. Sanders,
individually, and New Wave on December 4, 2009, alleging, inter alia, intentional
misrepresentation and breach of implied duty of good faith and fair dealing. 2 Homeowner
later amended her pleadings to assert the statutory cause of action of imputation of
liability against an individual for misrepresentation of licensure provided at Tenn. Code
Ann. § 62-6-136. Mr. Sanders responded that he entered into the contract with
Homeowner on behalf of A-Best Construction, Inc., a licensed contractor in Jackson,
Tennessee, which was owned and operated by Bruce Joy. To support this assertion, Mr.
Sanders contended that the contract was entered into by Homeowner and “A-Best
Construction,” which is identified as the “Contractor” in the first sentence of the contract.
The case was tried without a jury over a period of five days. In an order entered
March 17, 2014, the trial court ruled that Mr. Sanders committed intentional
1
Mr. Sanders was a member of the business New Wave, LLC. New Wave, LLC did business as
subsidiaries New Wave Mortgage and as Abest, and/or Abest Construction.
2
Plaintiff also alleged claims against the wife of Mr. Sanders and other businesses with whom
Mr. Sanders is associated, all of which the trial court dismissed. Neither party assigns error in the
dismissal of those claims.
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misrepresentation, breached the duty of good faith and fair dealing, and violated Tenn.
Code Ann. § 62-6-136.3 The trial court found that the “Abest” Homeowner had dealings
with, and whom Mr. Sanders was acting on behalf of, was New Wave LLC d/b/a Abest,
not A-Best Construction, Inc. The trial court further found that Homeowner had no
knowledge or experience in construction work, that Mr. Sanders was not a licensed
contractor, that Mr. Sanders intentionally misrepresented that he was a licensed
contractor, that Mr. Sanders misrepresented that all permits necessary for the work would
be obtained, that Mr. Sanders misrepresented that the repairs could be completed for
$27,500, and that these misrepresentations caused Homeowner to enter into the contract
with Mr. Sanders.
The trial court awarded Homeowner compensatory damages of $18,100 against
New Wave and Mr. Sanders, jointly and severally, with prejudgment interest at the rate
of 5% per annum from the date the lawsuit was filed. Finding Mr. Sanders’ actions were
intentional and fraudulent, the trial court awarded Homeowner $36,200 in punitive
damages against Mr. Sanders, individually, in an effort to “punish [him] for
misrepresenting that he was a licensed contractor and to deter others from committing
this wrong.” Mr. Sanders appealed; New Wave did not.
On appeal, Mr. Sanders asks this court to “revisit the findings of fraud,
misrepresentation, and good faith,” and to “reconsider the punitive damages ruling, and
violation of Tennessee Code Annotated section 62-6-136.”
Homeowner presents the following issues for our review:
1) Whether the Court should dismiss the appeal when Mr. Sanders has waived all
rights to appeal by failing to ensure that an adequate transcript, statement of the
evidence, or record on appeal was filed in the appellate court.
2) Whether the Court should dismiss the appeal when Mr. Sanders has waived all
potential issues by failing to comply with the Tennessee Rules of Appellate
Procedure, cite to the record, or address the merits of the case in the argument
section of his brief.
3) Whether the trial court’s conclusions of law are correct when the findings of the
trial court are presumed to be correct for Mr. Sanders’ failure to comply with
applicable rules, and the trial court conclusions of law are appropriately based
upon its findings.
3
On November 26, 2014, Homeowner filed a motion to amend the final judgment to reflect the
various aliases used by Mr. Sanders. Thereafter, the trial court entered a new final decree containing
identical findings of facts, conclusions of law, and an award of damages, but also included therein the
other names used by Mr. Sanders.
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4) Whether Homeowner is entitled to recover her attorney fees and expenses incurred
in defending this appeal when Mr. Sanders has failed to submit a transcript or
statement of the evidence, thus giving this Court no record to review, and where
the Mr. Sanders cites to no evidence in the record or legal grounds or authority
upon which this Court could offer him any relief, leaving no reasonable chance of
success for Mr. Sanders.
ANALYSIS
Because this case was decided by the trial court without a jury, we review the trial
court’s factual findings de novo with a presumption that they are correct unless the
evidence preponderates against them. See Tenn. R. App. P. 13(d); Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). Evidence preponderates against the trial
court’s findings of fact when it supports another finding of fact with greater convincing
effect. Walker v. Sidney Gilreath & Associates, 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).
We will affirm the trial court’s decision unless the evidence preponderates against the
trial court’s factual determinations or the trial court has committed an error of law
affecting the outcome of the case. Boyer v. Heimermann, 238 S.W.3d 249, 254-55 (Tenn.
Ct. App. 2007); see also Tenn. R. App. P. 36(b).
The appellant bears the burden of showing that the evidence presented to the trial
court preponderates against the judgment of the trial court. See Mfrs. Consolidation Serv.,
Inc. v. Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App. 2000) (citing Coakley v. Daniels, 840
S.W.2d 367, 370 (Tenn. Ct. App. 1992)); see also State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983) (holding that it is the duty of the party seeking review of the action of the
trial court to prepare a record sufficient to enable the reviewing court to determine if the
trial court erred). As we have noted in previous cases, the lack of a transcript or statement
of the evidence is generally fatal to the party having the burden on appeal. Sherrod v.
Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992). This is due to the fact that without a
verbatim transcript or statement of the evidence, there is no evidence to rebut the
presumption that the parties presented sufficient evidence to the trial court to support the
judgment of the trial court. Rodell, 42 S.W.3d at 865.
We are mindful that Mr. Sanders is a pro se litigant, and he is entitled to fair and
equal treatment; however, he is “not excused from complying with applicable substantive
and procedural law” imposed on litigants represented by counsel. Paehler v. Union
Planters Nat’l Bank, 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). Mr. Sanders, the
appellant, failed to favor this court with a transcript of the evidence pursuant to Tenn. R.
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App. P. 24(b) or a statement of the evidence pursuant to Tenn. R. App. P. 24(c).4 Thus,
we have no evidence to consider, only a technical record provided pursuant to Tenn. R.
App. P. 24(b). With no evidence to rebut the presumption of correctness, we have no
basis to conclude that the evidence is insufficient to support the judgment of the trial
court. Gross v. McKenna, No. E2005-02488-COA-R3-CV, 2007 WL 3171155 at *3
(Tenn. Ct. App. Oct. 30, 2007).
Furthermore, the trial court’s award of punitive damages was in accordance with
the law. A court may award punitive damages only if it finds by clear and convincing
evidence that a defendant has acted either “(1) intentionally, (2) fraudulently, (3)
maliciously, or (4) recklessly.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.
1992). The trial court found that Mr. Sanders’ actions were intentional, fraudulent, and
warranted an award of $36,200 in punitive damages in an effort to “punish Defendant
Keith Sanders for misrepresenting that he was a licensed contractor and to deter others
from committing this wrong” Accordingly, the trial court did not err in awarding
Homeowner punitive damages.
II.
Homeowner argues that Mr. Sanders’ appeal should be deemed frivolous. This
court is statutorily authorized to award just damages against the appellant if we determine
the appeal is frivolous or that it was taken solely for delay. Tenn. Code Ann. § 27-1-122.
The statute, however, is to “be interpreted and applied strictly to avoid discouraging
legitimate appeals.” Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2004)
(quoting Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977) (discussing the
predecessor of Tenn. Code Ann. § 27-1-122)).
A frivolous appeal is one that is devoid of merit or has no reasonable chance of
success. Id. A party’s failure to provide an adequate record may render the appeal
frivolous. See Williams v. Williams, 286 S.W.3d 290, 297-98 (Tenn. Ct. App. 2008).
Moreover, when appellants fail to cite to any evidence or rule of law that would entitle
them to relief, courts consider this to be “one indicator that the appeal may be frivolous.”
Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); see also Whalum, 224
S.W.3d at 181 (“[F]ailure to even cite to or argue for a justifiable extension of the law
controlling resolution of a given case is an indication that an appeal may be frivolous.”).
Mr. Sanders failed to provide a record that would allow us to conduct a review of
the trial court’s findings of fact even though his arguments focus on the trial court’s
4
The record does contain a partial transcript of the first two days of the trial provided by
Homeowner to the trial court following a three-month break in the proceedings. This partial transcript,
however, does not offer a complete and accurate portrayal of the issues and facts presented during the full
trial.
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factual determinations. Furthermore, the arguments set forth by Mr. Sanders are so
deficient that it is impossible to determine what specific issues the appellant is raising on
appeal. In his two-page brief, Mr. Sanders merely makes a blanket statement that he
wants the court to “revisit the findings of fraud, misrepresentation, and good faith” and
“reconsider the punitive damages ruling, and violation of Tennessee Code Annotated
section 62-6-136.” He neither sets forth any arguments regarding why the trial court’s
decisions were legally incorrect nor cites any authority to support his position.
For the foregoing reasons, we find this appeal is devoid of merit and so lacking in
justiciable issues that it constitutes a frivolous appeal within the meaning of the statute.
Accordingly, on remand the trial court shall award “just damages against the appellant,
which may include but need not be limited to, costs, interest on the judgment, and
expenses incurred by the appellee as a result of the appeal.” Tenn. Code Ann. § 27-1-122.
IN CONCLUSION
The judgment of the trial court is affirmed in all respects, and this matter is
remanded for further proceedings consistent with this opinion. Costs of appeal are
assessed against Mr. Sanders.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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